Oral evidence: Ministerial scrutiny: human rights, HC 978
Wednesday 18 November 2020
Members present: Ms Harriet Harman (Chair); Lord Brabazon of Tara; Fiona Bruce; Ms Karen Buck; Joanna Cherry; Lord Dubs; Baroness Massey of Darwen; Dean Russell; Lord Singh of Wimbledon.
Questions 1 - 20
I: Rt Hon Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice.
Oral evidence: Ministerial Scrutiny: Human Rights
Examination of Witness
Q1 Chair: Good afternoon, everybody, and welcome to this session of the Joint Committee on Human Rights. As our name suggests, we are a Joint Committee. Half of our members are House of Lords Members and half of our members are Members of the House of Commons. We are one of Parliament’s Select Committees. As our name suggests, our concern is with basic fundamental human rights such as freedom of speech, freedom of religion, freedom of assembly, the right not to be unlawfully detained, freedom from torture, the right to family life and many other basic and fundamental human rights. That is what we are responsible for within Parliament.
We are very grateful this afternoon to be joined by the Lord Chancellor, the right honourable Robert Buckland QC MP, who in government is the Minister responsible for human rights. Thank you very much for joining us, Lord Chancellor. We have a wide range of issues that we want to raise with you, including the Government’s plans for the Human Rights Act, whether you are satisfied that human rights are effectively enforced and protected in this country, the implications of your review of judicial review for the enforcement of human rights, your plans for the Supreme Court, and whether everybody has equal protection for their human rights. We have a wide agenda. I know that you are always very accommodating and ready to give us your views and those of the Government. We are grateful to you for appearing before us again.
Q2 Dean Russell: Lord Chancellor, thank you so much for joining us today. My questions are related primarily to the government plans to update the Human Rights Act.
Given your background, having been chair of the Conservative Party Human Rights Commission and having sat on the Joint Committee on Human Rights, as well as in your role as Lord Chancellor, I am sure without doubt that you recognise the important role that human rights play in protecting the most vulnerable in our society. I was interested in understanding, from the work you have done, how the position might have changed with regard to the European Convention on Human Rights and the Government’s stance on that.
Robert Buckland: I can reassure you, and indeed the whole Committee, of the Government’s continued commitment to our membership of and support for the European Convention on Human Rights. It is the 70th anniversary of its incorporation. It was British lawyers who helped lead the team. In fact, one of my predecessors, Lord Kilmuir—Sir David Maxwell Fyfe as he then was—helped to lead the drafting of this important document, which resonates through the years and enshrines fundamental rights that have been adhered to increasingly across Europe as the Council of Europe has expanded to include more countries.
It is in that tradition of helping to enshrine rights and protect liberties that I sit as Lord Chancellor, not just domestically but in our international obligations. It is the duty of government, in being the guardian of rights, to make sure that they are absolutely in the right place and right space when it comes to our domestic law. That is why the manifesto commitments that we made before the election, which successfully returned a Conservative Government, are ones that are entirely within that tradition. They are entirely within the duty that we all have to make sure that the legislative framework is working in a way that helps all of us and enhances the reputation and role of human rights and civil liberties as the bedrock underpinning a civilised, democratic and free society.
Dean Russell: You wrote to the Committee previously, saying that the Government remained committed to the ECHR. If you are satisfied with the European Convention on Human Rights, why would the Government consider any amendments to that? Why would you not just cross it over as it is to English courts right now, rather than making any changes?
Robert Buckland: There is a difference between the convention itself and any domestic framework that we have that helps the enforcement or application of it. By that I mean the Human Rights Act of 1998. Prior to its coming into force, some 20 years ago this year, the convention rights applied here. The question was whether there was an adequate domestic framework for their enforcement. It was very much felt that there was not, hence the coming into force of these provisions. They are now 20 years of age.
It is absolutely within the traditions I have just mentioned for the Government to look at them again to make sure that they are working in a way that benefits the majority of us. We will make sure that the mechanisms are effective, that our courts feel they are able to apply legislation and indeed to take decisions within the margin of appreciation that we all know exists as part of the case law of the Strasbourg court, and that we have that sense of widespread support and an enhancement of the role of human rights, not just within our law but within our wider society.
It is important that we remember the context within which the Government seek to act here. It is all about enhancement and protection, rather than anything that I know some commentators might interpret as some sort of attack or wish to undermine the very principles that we ourselves helped to create 70 years ago.
Q3 Dean Russell: In your recent letter, you stated specifically that the Government are committed to updating the Human Rights Act. I would be really keen to understand any specific examples of how you consider the Human Rights Act to be out of date. Could you give some specifics on that, please?
Robert Buckland: It is important to remember that, as the Act bedded in, we had developing case law around it. After 20 years, it is only sensible for us to take stock of where things have got to and to ask some questions. Any review will be very much an independent process of mature reflection, rather than a review that has predetermined conclusions that are set by government. That is not my intention at all and that is certainly not how any review would work.
We can perhaps start by coming to Section 2 and the issue about the courts taking into account the jurisprudence of Strasbourg, how that particular phrase has worked, how it has been applied domestically and whether there are issues with it. Questions asked about that over the years. Are we still in that same place? Is there a problem to be solved? We can also then look at the general framework in Sections 3 and 4. That is the framework within which incompatibility or otherwise is determined. All those questions are entirely legitimate ones.
It would not be necessary for us to revisit the rights themselves. They have been clearly set out in the convention and then reflected, to large degree, by the Human Rights Act framework itself. I am more interested in the mechanism and the way in which the case law of Strasbourg is used and applied here in the UK. They are entirely proper questions to ask and ones that I very much hope will occupy any review that takes place.
Dean Russell: From the response you just gave, am I correct in understanding that you do not see anything coming out during the review but perhaps only adding to it, or did I misunderstand that?
Robert Buckland: I am not going to pre-judge what the review might do or not do, or what its findings might be. I am interested in a review that looks at the mechanics of the Human Rights Act, the way in which it operates and the way in which our domestic courts operate with the court in Strasbourg. There have been, I am glad to say, plenty of really good examples of judicial dialogue between domestic courts and the Strasbourg court over the last few years. That is something I strongly support. I want to make sure that it is in a good place or more needs to be done with respect to that.
We should be asking ourselves whether we have got parliamentary involvement in compatibility issues right. Is it too much of an ex post facto situation, whereby your Committee and others issue important reports or declarations are made at the doorstep of the passage of legislation, rather than in the initial stages? Those are legitimate and proper questions for us to ask. It may well be that Parliament’s role could be enhanced as a result and a product of any deliberations the review conducts. This is designed to be very much a mature reflection, rather than some knee-jerk response, which I would never support or endorse. Very much in the traditions of my role, as a guardian of human rights, I want to develop things further and see how we can improve the current situation.
Dean Russell: You mentioned the term “examples” earlier. I would be interested to know if you could name any specific instances where you think the Human Rights Act has been a problem.
Robert Buckland: We know some of the history of what we regard as some of the more difficult cases. It does not take too much imagination to cast our minds back to the prisoner voting issue, which in the end was resolved through the appropriate means, via the Council of Europe, but it took some 12 years to resolve. It generated a huge amount of heat and controversy and absorbed quite a lot of negative energy, which took away from, undermined and derogated from many of the beneficial effects of the human rights framework.
I can think of the Abu Qatada case, again a very lengthy set of proceedings that took many years to resolve. That was complicated by the fact that it involved another jurisdiction outside the Council of Europe area.
Those examples are just a few examples of how quite controversial cases with difficult subject matter can almost overwhelm the otherwise positive message that needed to be sent out about what the human rights framework can achieve. It is absolutely incumbent upon me to reflect on all that and to see whether there are things that we can do better in the operation of our own processes and whether we can make refinements and improvements.
Dean Russell: With regard to this review, is this it? If the review happens and anything gets implemented, now that this is within the control of government, are we going to see another review in five, 10 or 20 years? Is it going to be an ongoing case of reviewing it, or is it going to be a one-off?
Robert Buckland: The manifesto commits the Government to a course of action over a Parliament, so we are looking at a five-year period. I cannot commit any future Government to what they might or might not do in this area. It is right to confine myself to what we said in the manifesto and what we intend to do. Everybody on the Committee and in the wider audience can be reassured or informed that this is all about updating, refining and improving in the light of experience. Now we have had 20 years of that experience, the time is right to do this.
Q4 Dean Russell: Finally, in terms of the transparency of the review and the activity and the outcomes of this, could you explain some of the process there for me, please?
Robert Buckland: I am not going to outline in detail what has not yet been announced. I can say that it will be independent, that the panel that will be created will be diverse and will reflect, most properly, the fact that this is a United Kingdom issue, and that voices, opinions and influence from all corners are therefore absolutely essential in order to get that balance right and have diversity of thought. I do not want this to be a body that has a collective groupthink. I want that diversity of opinion very much to play a part in the deliberations of the review.
In time, I envisage that it will present a range of proposals and ideas to government which the Government would then consider in the round and develop their policy accordingly. The Government will not be bound by the findings of any review, but no doubt its views and processes will carry significant weight. Without going into the detail as to timescales and the precise product of any review, Committee members can be reassured that it will be a careful process, rather than government unilaterally coming up with its own ideas and proposals without thought and consultation.
Q5 Baroness Massey of Darwen: Lord Chancellor, good afternoon to you. I have a few questions about what you just talked about: the processes of the independent review. Are there terms of reference already in place for this? What will it cover exactly? When will it begin? How long will it take? Who will conduct it? Will the review engage with the public?
Robert Buckland: You will forgive me if I cannot directly answer all those details, because they have yet to be resolved and agreed. I can tell you that this will be independent. The chair will be independent of government. The panel members will also be independent men and women. As I have said, I also want that diversity of thought and geography to reflect the UK dimension of these issues. There will indeed be agreed terms of reference. I envisage that the process of the review would very much follow what we have seen with the independent review of administrative law that I launched at the end of July. I therefore envisage that there will be involvement of the wider society and the public in the form of a call for evidence.
I am very respectful of the fact that it will be for the independent chair and the panel to determine precisely how they wish to conduct things. I expect their work to take many months and to result in the next stage, which requires government consideration and a response. The creation of the product will be a policy position that is informed very much by the findings of the review and indeed the wider consultation.
I am sorry that I cannot give you absolute chapter and verse as to dates and precise timings, but the overall principles of independence and involvement with wider society should, I hope, give you some reassurance about my sincerity with regard to this process.
Baroness Massey of Darwen: That is helpful. Could you tell us a little about how you contemplate, and have contemplated in the past, consulting and engaging with the general public?
Robert Buckland: We already have an immediately good example with the call for evidence that was launched by the IRAL, the independent review of administrative law. I understand that it has had many hundreds of responses, which the panel is working through and digesting now.
That is a very good example of how we can involve wider society in these deliberations. Indeed, sessions like this will no doubt engender further debate even before we get to this stage, and no doubt there will be debate after the fruit of any of the labours of this review. That is what I want to see. I want to see any potential formal updating to come at the end of a process of proper debate, rather than be sprung in a way that would be inappropriate, bearing in mind the importance of these provisions, their role in our law and the way in which the Strasbourg case law and the developing case law of the European court is applied by domestic courts in the United Kingdom.
Baroness Massey of Darwen: It sounds as though you do not want it to take years. You would rather have it done in months. Is that right?
Robert Buckland: That is correct, yes.
Q6 Fiona Bruce: Thank you, Lord Chancellor, for reassuring us of your desire that the review is independent. Our Committee has noted that the independent review of administrative law is chaired by a former government Minister who has publicly criticised the current approach taken by the courts. Can you give us any more reassurance as to how you will ensure this review will indeed be independent?
Robert Buckland: Can I immediately come back on that by making this observation? I have absolute confidence in the independence of Lord Faulks. He is a very distinguished lawyer of many years’ experience. Yes, he served in government, as a Minister in the department I now lead. His views on many matters are on the public record. I certainly do not think that should have been seen in any way as a disqualification or impediment to his assumption of the chairmanship of that review. He can be absolutely trusted to apply robust independence of thought and process to it.
He is supported by a very diverse panel. Nobody has seriously queried the diversity of the panel assembled. It contains a number of academics and practitioners of differing views, with differing positions on the political spectrum. That is precisely what I wanted to achieve, because an independent panel is enhanced by that sort of diversity. That is why the work of the independent review under Lord Faulks will be meaningful and serious and will add substantially to thinking in this important area.
It is precisely in that mode that I am proceeding with regard to the forthcoming Human Rights Act review. Tempting though it is for me to start revealing names and identities, that is not possible today. I can assure you and the Committee that the chair and the panel will indeed be independent, diverse, robust and free of any perceived or actual influence from me or any other Ministers.
Fiona Bruce: You have given us a number of reasons why you consider that the review is necessary at this time. I want to point out again the Committee’s observation that previous Governments have established reviews of the Human Rights Act that have led to numerous proposals for reform that have not yet been fully carried out. Can you confirm that this review will be informed by that work?
Robert Buckland: Inevitably, the answer is yes. There is product from previous examinations, albeit of slightly different issues. Let us take the British Bill of Rights matter, which we are all familiar with, it having taken various forms over the years, most notably in work done by a commission during the coalition Government and then in work carried on, by this department chiefly, after the 2015 election. Clearly, all that work will be of interest to the review.
To be fair, that line of work is somewhat different from the future work that I wish to see happen. What I have already outlined is very much a look at the machinery, rather than an issue about the rights themselves. If you remember, part of the debate about the British Bill of Rights was whether we just lift all the rights outlined in the convention and enshrine them into domestic law, for example, or whether there were certain rights that we wanted to add to or that we might want to qualify. That is a very different debate from the one that I have started. That body of work is of great interest and value, but it goes to a somewhat different question from the one I seek to answer in the review that will be undertaken. That is why, this time, things are a little different from what we have seen in the past.
Q7 Fiona Bruce: Moving slightly more broadly than this particular review, you spoke earlier of the importance of reflecting on the workings of the Human Rights Act. Could you comment on whether the Government consider that the Act hampers their ability to keep the public safe from the threat of terrorism and serious crime?
Robert Buckland: Upholding human rights and keeping the public safe are two sides of the same coin. They go hand in hand. There is always a balance to be struck here: there is a need to protect the public, but not so far as to protect us all out of our rights. Governments have faced an age-old dilemma, both in times of war, when various measures had to be taken that clearly curtailed important civil liberties, and in times of peace, whether it is the challenge of a pandemic emergency or the sadly enduring challenge of terrorism.
A really good example of how we struck the right balance was in the Investigatory Powers Act, which, as a law officer, I helped to guide through the House of Commons. It is clearly a very important, controversial and sensitive piece of legislation, dealing with issues that, frankly, allow the state to interfere substantially in the private lives of individuals, therefore engaging Article 8. The balance we struck through mechanisms such as the double lock, the involvement of the judiciary and the commissioners, all of whom are senior former judges, making decisions that are an essential part of the authorisation of interception warrants, was a really good example of how we can strike the right balance between national security and human rights in the modern age.
Q8 Lord Brabazon of Tara: Good afternoon, Lord Chancellor. Do you see this review as an opportunity to improve the protection of human rights in this country? For example, is there any scope for the incorporation of other core rights, such as those provided for by the UN Convention on the Rights of the Child?
Robert Buckland: The review is an opportunity for us to improve and enhance the way in which the convention rights are applied in the UK. I am particularly interested in the question of reputation. I hear far too often the cry that human rights only seem to be for criminals or other people who are seeking to use the mechanisms to obtain some sort of advantage. I want to dispel that sort of talk. I want people to understand that human rights are for everybody. They are for all of us, whether it is somebody who has had their privacy wrongly interfered with in a way that would be intrusive and injurious, or a victim of crime who has suffered unjustly as a result of failure by an organ of the state. There are so many examples of where human rights protections have done much good for many people in our society. I want that to come more and more to the fore.
When it comes to other core rights, although this particular review will not be troubling itself with those issues, it is important to remind ourselves that we have already reflected commitments to rights such as the UNCRC—the UN Convention on the Rights of the Child—to a large degree in existing legislation and policy. We are striking the right balance when it comes to observance of important international conventions by making sure that our domestic framework very often runs ahead of basic convention rights that we have signed up to. I am confident that everything that we do as a Government is very much consistent with an approach that seeks to honour, enshrine and underpin obligations that we reached at an international level within our domestic law wherever appropriate.
Q9 Lord Brabazon of Tara: I shall roll the next two questions into one. First, do you plan to involve this Committee in the review? Secondly, how will you ensure that the public are adequately consulted? You have already answered that to some extent.
Robert Buckland: As I have already said, it would perhaps be premature of me to delineate with absolute precision every aspect of the review’s operation, in particular with regard to the gathering of evidence. I am not going to delineate its parameters now. I can say that I would firmly expect and suspect that they will want to talk to your Committee during their process. Bearing in mind that independence is at the heart of this, I need to leave that final decision to them.
With regard to your second question about the public, I have answered that. Again, without pre-judging how the review might wish to do it, we have already seen in the Lord Faulks review a major call for evidence that has yielded a lot of important information that has been sent in.
Q10 Joanna Cherry: Good afternoon, Lord Chancellor. In the negotiations with the European Union at the moment about the trade deal, one of the major stumbling blocks for the United Kingdom has been an insistence in the EU’s negotiation text that law enforcement co-operation and judicial co-operation in criminal matters would be immediately terminated if the United Kingdom was to denounce the ECHR or if it “abrogates the domestic law giving effect” to the ECHR. Why is that still a major stumbling block if your reforms to the Human Rights Act have no intention of abrogating domestic law giving effect to the ECHR?
Robert Buckland: It would perhaps be wrong of me to start going into detail as to precisely what is being negotiated. I can say that our friends in the EU do not have anything to worry about when it comes to the UK’s commitment to and wish to adhere to the European convention. Speaking as somebody who has consistently spoken up on this issue in a positive way, I know that what I have said has resonated with our negotiating partners.
It is not necessary for any adherence to convention rights, and to the convention, to be underpinned within the legal text of a treaty. It is self-evidently true that both we and our friends in the EU share the collective will to adhere to those rights. Therefore, binding commitments within the body of a legal text would not be necessary. Let us just turn it around for a moment. If we were the demander and were asking the EU to incorporate in its legal texts formal commitments to this regime, it would be saying exactly the same: that it is not necessary and does not actually add anything to where we are. In the final analysis, I do not think it will be a major stumbling block, because there is that shared will and understanding of its importance.
Joanna Cherry: It was recently reported, just last month, in the Guardian, that the Prime Minister was prepared to make what he described as a major compromise to make a commitment not to materially alter the spirit of the Human Rights Act in order to secure a deal with the EU. Does that perhaps suggest that the reforms to the Human Rights Act that are contemplated by the Government, of which you are part, will not be as substantial as some of us anticipated?
Robert Buckland: I am not sure that that report is wholly accurate, to be frank. Although it is tempting for me to share with you—my instinct is to share—we are in sensitive negotiations. Neither side will, in the final analysis, view such formal texts as necessary here. Everything that I and other Ministers have said about the convention is well understood and appreciated. That is a different issue from our domestic framework, as you would rightly appreciate. No one in the EU is suggesting that we do not have the right or the ability to carefully examine the Human Rights Act and other domestic provisions. That is entirely within our gift. That in no way crosses over or conflicts with the process that we are undergoing in the future-relationship negotiations.
Q11 Joanna Cherry: Let us leave the EU negotiations to one side and come back to looking at purely the domestic context. The Human Rights Act applies across the United Kingdom, in the separate legal jurisdiction of Scotland as well as England. Are you able to give us an undertaking that any reform to the Human Rights Act will not reduce the extent to which individuals can rely upon their ECHR rights in the domestic courts?
Robert Buckland: As I have implied throughout my question-and-answer session this afternoon, my aim is not to diminish, change or remove the rights that can be enforced domestically. My prime interest is in the mechanism itself. It is not about diminishing. It is about an enhancement. It is about an increase in quality and the way in which they can be applied. That would apply in all corners of the kingdom and in all three of the jurisdictions covered by the Human Rights Act.
Joanna Cherry: Would you agree with me that, if the Human Rights Act was amended in such a way as to reduce the extent to which individuals could rely on their ECHR rights in the domestic courts, it would mean an increase in cases going to Strasbourg?
Robert Buckland: There is absolutely a danger of that. It is important to remind ourselves that Article 13 of the convention is not prescriptive about effective remedy. That is the phrase that is used, is it not, in the convention itself? It leaves it to the member state, the signatory, to determine what that process might be. I am not going to sit here and say that a court process is not the right way to deal with this—far from it—but it is the job of all of us to consider whether there are other avenues and other means by which the citizen can obtain redress of grievance. We know that litigation can be long and expensive, for example. It is not always the best answer here for the wronged citizen.
Therefore, without undermining in any way my faith in court processes, it is good to go back to those first principles under Article 13 and remind ourselves that it might not be as binary an issue as perhaps is suggested, although I take the central tenet of your argument very much to heart. It has a high degree of force. Prior to the Human Rights Act, we saw that direct petitioning to Strasbourg, which itself was lengthy, costly and meant that a lot of disputes and issues were protracted over very many years. Although I absolutely accept the force of your point, there are other ways of looking at this that we should pause upon and reflect over.
Joanna Cherry: Do you think the Prime Minister thinks that the Human Rights Act is another one of Tony Blair’s big mistakes?
Robert Buckland: You had better ask him that. I was active in politics in those days, although obviously not an elected Member. I had tried a few times for Parliament by then, unsuccessfully. I certainly remember feeling at that time—no doubt the Chair will come in with her view, as she was a senior member of that Government—that there was a year-zero feeling about many of the reforms made by the Blair Administration. Sometimes it is good to try to reflect on what got us to that point, not just on the mistakes that were made. We think about the great devolution debates that we had back in 1997, at the time of the referendum. I was very much an active part of the “no” campaign in Wales, by the way; I will declare my interest.
Here we are, 20 years or so on. Why not reflect properly on what has brought us to this point? As we do that, in a mature and sensible way, accepting that none of us have a monopoly on wisdom, least of all me, we can prepare a future that is more stable and something that will last for longer, if we accept that there are many influences that have got us to this spot. I am very much an incrementalist. I am a Tory, so that is very much at the heart of what I believe. It is in that spirit that I am approaching the reviews that we have started or are about to undertake.
Q12 Joanna Cherry: Can I ask you a couple of questions about the independent review of administrative law? We have taken evidence from experts in administrative law and they have told us about the crucial role it plays in holding Governments to account for proper decision-making and in enforcing human rights. What is it about the current law of judicial review that you think needs changing? What do you think is good and we should hang on to?
Robert Buckland: First, I can reiterate my absolute belief in and commitment to judicial review. It is a very important mechanism by which government is held to account. It is absolutely vital that, as part of the rule of law, the legality of government decisions is open to challenge by those who are affected by them. There is no question mark whatever over that.
After a generation of the expansion of administrative law on both sides of the border, and indeed in all three jurisdictions, it is right, with an appropriate focus on England and Wales, that ascertaining whether changes are needed to strike the right balance is timely and appropriate now. Ms Cherry, you and I have discussed this before; you have rightly asked detailed questions about this and I can give you that reassurance again about its primary focus. I do not think any of us believe that judicial review should be politics by another means. It is something that certainly the High Court in England has expressed concerns about in the past. It is something I want to seek to avoid and prevent, to make sure the judges themselves are not put in an invidious position where increasingly they are drawn into arenas that increasingly involve the merits of a policy, rather than the process itself. That is why having an independent review to take stock of where we are and to see what options there might be in order to strike that balance is now the right thing to do.
Joanna Cherry: On this question of judicial review being politics by another means, when Lord Dyson gave evidence he said that often judges are criticised for their decisions in judicial reviews brought on human rights grounds but they are not actually taking a political decision; they are taking a legal decision that has political implications or political consequences. Do you see the distinction? A legal decision may have political consequences, but that does not mean to say that it is a political decision; it is still a legal decision. Can you accept that distinction made by Lord Dyson?
Robert Buckland: I listened with very great interest to that. None of us is saying that judges are making decisions based upon any political view or opinion they may have. That is the first thing I want to make absolutely clear. None of us seriously believes that. Because judges are being placed in a political arena, there is a risk that the decisions they make are increasingly being seen as having a political tinge, although, as you quite rightly say, they are based upon the law and their honest and independent assessment of the law. That is not something I believe judges want to happen. It is not something I believe they choose to happen, because they do not choose the cases before them. It is something I sincerely and genuinely want to try to avoid. I want to do my best to protect the judiciary from any perception of involvement in political matters.
Joanna Cherry: What if the perception is wrong? For example, in the first Miller case, the English High Court could not have made it clearer that the decision was not about the merits of Brexit. The decision was about the supremacy of Parliament and whether Parliament should have to pass an Act. The judiciary went out of their way to make it clear that it was not a political decision, but the Daily Mail still called them enemies of the people and some of your Cabinet colleagues weighed in. Is it not the responsibility of politicians to make it clear that there is a difference between a legal decision with political consequences and a political decision?
Robert Buckland: I agree readily with that. At the time of the “Enemies of the People” headline, I was Solicitor-General. I made it clear at the meeting of the Bar Council I attended the day after that I deprecated those headlines and the insinuations behind them. Similarly, at the time of the prorogation case, I was very quick off the mark to make sure that I put on the record my confidence in the ability of our independent judiciary to make legal decisions free of political influence. If it needs restating, I restate it now.
This review is not about that. It is simply about making sure that, as administrative law has no doubt evolved over the last 30 years, we are not inadvertently putting judges in a position where, frankly, they do not want to be and should not be. I always have in the back of my mind my horror of and worry about a US-style scenario whereby our senior judges, or indeed more junior judges, are either the subject of election or selection by political figures. It is something we always need to be vigilant to seek to avoid. I never want to see that here in any of our jurisdictions.
Coming back to the detail of administrative law, I do not think any of us would disagree that administrative law, as certainly I was taught it as an undergraduate 30 years ago, has evolved quite significantly from the position where, in essence, it was about the process and making sure that the decision-maker had followed the rules of natural justice, the principles of Wednesbury unreasonableness and all those issues that we are very familiar with. It has evolved, and no doubt in a way that starts to bring judges closer to issues that look more like merit-based decisions. Therefore, it is vital that we take stock now, reflect on where we are, and make sure that the judges are in a safe place and we do not inadvertently sow the seeds of politicisation, which none of us would want to see.
Q13 Joanna Cherry: You mentioned the correspondence that you and I have had about judicial review in Scotland. I wrote to you, pointing out that judicial review is part of the civil justice system of Scotland and therefore a devolved matter under the Scotland Act. Perhaps more importantly than that, it is protected as part of the inherent supervisory jurisdiction of the Court of Session, protected under Article 19 of the Treaty of Union between Scotland and England. You wrote back to me, giving me some reassurance. You said, “The panel will only be focusing on reserved powers in considering reform, and in so doing would focus on UK-wide powers or procedures relevant only to the jurisdiction of England and Wales”. Is that a disjunctive “or”?
Robert Buckland: I was trying to convey the fact that, clearly, it is not the role of that review to start looking at non-reserved matters. That is why I wanted to make it very clear that, while in reserved matters there is a UK dimension, in every other respect it is a focus on the England and Wales situation, rather than distinctively looking at Scots law and the Scottish jurisdiction. As you say, you rightly cautioned me about the potential problem here. The review members will be very cognisant of that and we will strike the right balance in a way that does not inadvertently stray into areas that I do not wish the review to trespass into.
Joanna Cherry: I think that answer is that it is a disjunctive “or” and the review will look at potentially curtailing judicial review in Scotland in relation to reserved matters such as immigration. Is that right?
Robert Buckland: I am not going to pre-judge what the outcome of the review might be. I am not going to even begin to speculate as to whether it would result in a curtailment of rights in relation to reserved matters such as immigration. I am absolutely mindful of my UK role with regard to the tribunal system. It is right for me to delineate it in the way that I have. Let us see what the product of the review is. Can I reassure you that this is not some sort of full-throated political attack upon the rights of any of us, north or south of the border, to make applications to either the High Court or the Court of Session where government action has led to detriment to the citizen?
Q14 Ms Karen Buck: Good afternoon, Lord Chancellor. I would like to ask you a few questions about the Government’s compliance with human rights in respect of legislation. When you gave evidence to us in the spring, you said that you did not see your role as being that of a policeman in respect of other government departments and the human rights compliance of that legislation. You thought it would be a sorry state if you were sweeping up after them.
As you will know, we have had some legislation over the last few months that has caused this Committee a great deal of concern. In our reports, we have been highly critical in respect of human right compliance, particularly covert human intelligence, the overseas operations Bill and the United Kingdom Internal Market Bill. I wonder if you feel that you should have been a policeman or done some sweeping up, or whether you feel that should now be your role.
Robert Buckland: Thanks for reminding me about what I said earlier in the year. It is helpful as a guide to what I still believe should be very much the case. If it was left to one Minister, say the Lord Chancellor, in effect to scurry around all corners of the Government to remind people of their human rights obligations, we would be in a sorry state. It should be incumbent upon all Ministers and all departments to take the proper and appropriate legal advice, which will include advice on the Human Rights Act, the human rights dimensions and convention rights.
The formal role of the provision of legal advice is ultimately that for the law officers, the Attorney-General and Solicitor-General in England and Wales, and the Advocate-General for Scotland in relation to UK Government business in Scotland. With regard to the particular measures you raise, the departments that are responsible for them would have had the benefit of legal advice from their own lawyers. As part of the legal issues memorandum that every Bill has to have, that will include an analysis of convention rights. That would lead to the declarations we see on the face of each of the Bills.
Yes, we can have lively, proper and often heated debate about the implications of each of those measures. Ultimately, they will have all been subject to the same internal government processes that apply, whichever political party might be in power—or if none is in total control, as was the case in the coalition. That advice will not vary because of the political hue of the Minister concerned. Therefore, I am satisfied that the processes, with which we are all familiar, particularly those since the coming into force of the Human Rights Act, have been adhered to in all the instances we have seen this year.
Yes, there have been moments—I make no bones about it—when there have been quite a lot of tensions. The United Kingdom Internal Market Bill is perhaps a very good case in point, where I, the Lord Chancellor, have been active and voluble in making my points heard. That will continue to be the case. It might not be an easy road sometimes, but it is one that I am more than prepared to embark upon and navigate, despite the brickbats I might get from those who think I am not being strong enough on rule of law and human rights issues and those who think that I will go too far. I will not be deterred by that and I will continue to play an active role, not as a policeman but as a guardian, as a strong voice to be heard when I think that Parliament and its views need to be considered very carefully by the Government.
Ms Karen Buck: That is fine as far as it goes, but it still leaves us with the presenting problem, which is that, in these three cases, we have legislation that was brought forward which this Committee finds falls well short of compliance in respect of human rights legislation. If you are satisfied with the robustness of the procedures and your role in them, how do you explain that variation between what should be the standard we expect of compatibility and what actually happens?
Robert Buckland: Ultimately, I am afraid, it is a difference of view. I cannot gild the lily. We take the firm view in government that the legislation we have introduced is compatible with convention rights. We have already had quite a high degree of debate and scrutiny on the Bills that you mention. The overseas operations Bill, as you know, has now completed its course in the Commons and is about to go to the Lords. We see the United Kingdom Internal Market Bill being the subject of very close scrutiny by the House of Lords.
Ultimately, these are matters for Parliament. The will of Parliament will express itself and is already doing so. I am absolutely confident in the checks and balances we have in our system. Although the work of the Joint Committee is clearly important—I was a member for several years, and it is work of weight and importance—with respect, the view of your Committee is not necessarily conclusive of the issues we are having to deal with. I say that with the greatest of respect.
Ms Karen Buck: I absolutely understand that point. Particularly in respect of the United Kingdom Internal Market Bill, the Committee found that the purposes of the Human Rights Act were inconsistent with the Section 19(1)(a) statement and were “constitutionally inappropriate” and recommended that they be removed. Parliament was advised that that legislation was compatible with the HRA; we found that it was constitutionally inappropriate. That is not just a difference of political view.
Robert Buckland: That is a different argument. Something being constitutionally inappropriate would not necessarily mean that convention rights are being breached as a result of the passage of this legislation. If anything, the argument on ECHR compatibility with respect to the UKIMB, the United Kingdom Internal Market Bill, is rather a weak one.
I have tried to think about potential rights that would be breached by the UK taking action to safeguard the passage of goods from Northern Ireland to GB or the inadvertent application of state aid rules in our domestic affairs. I thought perhaps about Article 1, Protocol 1, property rights, but, if anything, what the Government are seeking to do through the measures is to enhance and protect Article 1, Protocol 1 rights. Therefore, there is an argument to say that in fact we are seeking to protect aspects of our human rights through the particular provisions in Part 5 of the Bill.
I accept that there are plenty of other arguments to be advanced about potential conflict with international law and the questions relating to Article 4 of the protocol and the operation of Part 5 of the Bill, but I do not believe, frankly, that they are Human Rights Act or convention arguments.
Ms Karen Buck: You did not express any concerns or make any representations on this issue.
Robert Buckland: I am not going to go into what I might or might not have said to Cabinet colleagues or indeed other members of government. Of all the issues that beset this particular Bill and Part 5 issues, I do not think that convention rights issues are anywhere near the top of the list. There are other issues, as I have already readily admitted, that have concerned some members of this Committee and other parliamentarians, which I have sought to address and deal with. When I referred earlier to my role as an active Lord Chancellor, I was thinking very much of this Bill as a case in point.
Q15 Ms Karen Buck: Turning to the coronavirus legislation, you told us in the spring that you were anxious to ensure that the regulations under the Coronavirus Act were necessary and proportionate and would continue to be so. As the months have gone by, this legislation has been applied. Interestingly, there was a report this morning about the level of fining and the number of people who were not paying or were not able to pay the fines that had been applied to them under coronavirus legislation. What steps have you taken to assure yourself that the legislation remains clearly understood, proportionate and necessary in all cases? Has the use of police powers and fines in any way caused you to question any of that?
Robert Buckland: You can be assured that I keep this matter under careful review at all times. For example, the renewal of the Covid Act provisions—you will remember that there was the six-month review period—was a moment for all of us, as Ministers, to reflect upon our different areas of responsibility within the Government and to ask searching questions as to the necessity of the continuance of all or some of that emergency legislation.
I can think of a case in point with regard to Mental Health Act provisions and the powers that were taken, which were never used, to allow one clinician, rather than two, to certify the application of the Mental Health Act to the detention of an individual, for example. There was the truncation of certain timelines that were of necessity put in place to safeguard the liberty of individuals who otherwise would be subject to the provisions of the Mental Health Act. That is something I took incredibly seriously, together with my colleague, the Secretary of State for Health.
I took a view that, when it came to England, we should not be continuing those provisions. That was not necessarily the view that was taken in Wales, for example, but I absolutely respect the powers and responsibilities the Welsh Government have. It is an example of how I took this incredibly seriously. I feel that the continuance of emergency powers has been undertaken only as a result of the most careful and anxious consideration.
Your point about fines and the criminal process is, again, very well made. We have seen a decision made to deal with the most serious fines, the fines of £10,000, by way of court process as opposed to the fixed penalty notice procedure. That is right and a sensible approach. That level of fine is clearly a very serious penalty. The more serious the penalty, the greater the necessity for as strong a due process as possible. I believe that very strongly.
That is why I thought that the fixed penalty notice regime, which has applied in the main to the lower-level fines and the other types of infringement, has worked well. We have seen many thousands of those cases processed through the single justice procedure. That continues to apply. To my mind, that works in a very acceptable and appropriate way. Through those examples, I hope I am giving you a flavour of the constant vigilance that we all need to have as Ministers to make sure that, in protecting the public and saving lives, we are not trampling, in an ill-considered and thoughtless way, over fundamental civil liberties and our way of life.
Ms Karen Buck: How do you ensure that you are monitoring the impact of regulations and the impact particularly of penalties being applied under those regulations across different groups, with a view to an equalities angle to the impact on different types of communities?
Robert Buckland: Frankly, that is quite a challenge. We are having to move very quickly. We are seeing many thousands of fines being imposed, remembering that it is still a vanishingly small minority of the population who are subject to these rules. Frankly, it is still too early to say precisely what the equalities impact of all this is.
From my own local experience, I know that police authorities are able to keep records, for example, of the ethnicity or gender of people who are being subject to fine under this regime. Therefore, there should be an emerging data picture that can tell us whether there are any trends and particular groups of people who are being disproportionately affected by this. That is still emerging information. It is something I am sure we can work upon.
With regard to the Public Health England work on the BAME community, for example, and the impact of Covid upon members of that community, that analysis work is already under way. I am sure there is more we can do in the field of understanding the impact of criminal sanction. I would be happy to help pursue that in order for us to understand the full impact of these regulations and the current criminal regime upon our wider society.
Ms Karen Buck: I will conclude by saying that we as a Committee would very much welcome that. Although I totally take the point that it is a fast-moving situation and data often takes a little longer to work through, the fact that we have had to review this legislation at the six-month point and that the regulations themselves are being monitored and updated so quickly means that it even more incumbent upon the Government to make sure that they are monitoring this in as close to real time as possible. If that could be fed back to the Committee, we would probably all appreciate it.
Robert Buckland: I will do that.
Q16 Lord Dubs: Lord Chancellor, you are the Minister in government responsible for human rights. We have recently published a report on the black community; I am sure you are aware of it. One of our findings was that over 75% of black people think that their human rights are not equally protected compared to those of white people. Why do you think they believe that? What do you think we can do about it?
Robert Buckland: Can I thank the Committee for the report that was published last week? We will consider it very carefully and will of course come back with a formal response. In the interim, the short answer to your question is one word: trust. Sadly, in far too many instances, trust has been lost because of some of the actions of the agencies of the state. There is an old adage that trust leaves on horseback but returns on foot. In other words, it can be lost very quickly and takes a long time to be regained. Having that fundamental understanding very much lies at the heart of what we want to do as a Government.
We want to build on work that other Governments in this decade and the previous decade have achieved. The race disparity audit was an unprecedented, ground-breaking piece of work that made us face up to some of the uncomfortable truths about race disparity. We can and will build on that with our new commission that will examine all aspects of disparities in Britain.
You have asked a particular question about the black community. When it comes to criminal justice, there is no doubt that there has been a real issue with regard to the way in which particularly young black people come into contact with the system. That is why the work of the Youth Justice Board to examine this question from a child’s perspective has been so useful. The work that it is doing is very much feeding into the work in my department, not just here but also with the College of Policing and the Independent Office for Police Conduct, to see what more can be done to apply a much more consistent approach to all children and young people, irrespective of their ethnicity.
Of course, there are also specifics. The work of the Lammy review is something that we continue to implement. Although it is not yet job done, of the 35 recommendations listed that are relevant to the work of my department, we have now completed a significant number of actions in relation to them.
There were one or two recommendations that we have not taken forward. Most notably and most recently, in one key respect—I know I enjoy the support of the shadow Lord Chancellor in this—we will take action to reform the criminal records regime, which he rightly pointed out as having a disproportionate effect on people from an ethnic minority background. In other words, we want to give young people who might have committed criminality at an early stage the chance to get gainful employment and to move away from that cycle of criminality and deprivation.
There are practical things that we need to be doing in order to rebuild that trust. Certainly on my part, as Lord Chancellor and upholder of the rule of law, that means equality before the law. If we can reflect that consistently, in our deeds as well as our words, trust will start to be rebuilt among sections of the community that frankly have lost it.
Chair: Can I follow up on Lord Dubs’ question? You gave a full answer, but I still am not sure that I understand what you are saying about this. Do you actually think that there is equal protection of human rights for black people as there is for white people? I can answer that question very easily, without reference to trust, to what has gone in the past or to perception. I can say that I do not think that black people’s human rights are equally protected compared to white people’s human rights in this country. Can you answer the question about what you think? Do you think that black people’s rights in this country now are equally protected compared to white people’s?
Robert Buckland: I can. I do not think they are equally applied. The law and the framework are there, but it is the application and the experience that are unequal and different. There are far too many instances where that has been the case. It is about understanding that this is now about practicalities and sensible steps that we can take to level that field. That is where we need to be.
Q17 Lord Singh of Wimbledon: Good afternoon, Lord Chancellor. As the Minister in government responsible for human rights, are you worried about the breach of human rights of young people with autism or a learning disability, including the right to family life, the right not to be detained and the right not to be subjected to inhuman and degrading treatment?
Robert Buckland: I am very grateful to you for asking this particular question, because the issue of the effect upon the human rights of young people with autism or other lifelong conditions or learning disabilities is very close to my heart and something that I have campaigned about in particular, before I was a Minister. I have taken particular note of the work of the Equality and Human Rights Commission on issues relating to young people in particular and to people with these disabilities. I have responded to the work of that commission in what I hope will be regarded as a very positive way, accepting a lot of the recommendations that it made.
We have to start looking at things from the perspective of the person. Far too often with disability, it is about doing things to people, rather than with them or allowing them to make decisions for themselves in as fair a way as possible. My priority has to be that people with a learning disability or with autism get the same high standard of care that anyone else would expect, and that, regardless of wider circumstances, regardless of even the Covid emergency, we are protecting their rights. We have seen instances where their rights, frankly, have not been respected. It is not acceptable, and we all need to do more in order to prevent that from happening again.
Therefore, I am very interested in the work of your Committee, and indeed the commission, in coming up with practical proposals that can not just mitigate but end some of the injustices that we have seen. I give you this undertaking: I want to work with you actively in order to make swift progress here.
I will be addressing the All-Party Parliamentary Group on Autism within the next few days or so. No doubt these issues will come up there as well. I want to hear directly not just from the important charities in this sphere but from the people themselves about their experience, because it is only through learning from them that we are really going to get a grip on a problem that, frankly, has gone on for too long. We are still applying to too far a degree not even mid-twentieth century solutions—they are perhaps ones from the previous century—to problems that we should be understanding a lot better in the 2020s. I thank you for that question and I very much hope that we can make real progress.
Q18 Lord Singh of Wimbledon: I particularly agree with the last point you made. That is helpful. The Lord Chief Justice recently told the Justice Committee that its “general attack on the legal profession … undermines the rule of law”, and said that lawyers should not be condemned for “acting fearlessly” for clients. Do you agree that lawyers should not be criticised for representing unpopular clients in controversial cases? Do you agree that the independent regulators are the correct bodies to deal with any concerns about the conduct of members of the legal profession?
Robert Buckland: Lord Singh, I can reassure you that, as a member of the Bar who adhered to the cab-rank rule, I always believed in the principle of representing your client without fear or favour. I did not choose my clients. I represented them in that time-honoured and ethical way. That is what I believe the vast and overwhelming majority of legal professionals do in England and Wales, and indeed in the other jurisdictions in the UK. We are lucky to have a world-class group of legal professionals in our society.
Again, using my own experience, I have always had strong political views and have been involved in politics through all my adult life. I left my politics at home when I went to court or into chambers, because I did not view my politics as in any way relevant to my duties as a lawyer. I believe that drives the vast majority of legal professionals as well. Many legal professionals have no politics. We should not assume that they have a view.
However, I will say this: in a lively democratic society, lawyers, as is the case for people in other walks of life, are not above or beyond criticism or debate. In fact, Shakespeare memorably wrote about lawyers and we all remember the words that he put into the mouths of some of his characters about them. This has been with us for generations. Indeed, previous Governments have made unflattering and unhelpful comments about lawyers. I remember the “fat-cat lawyers” comments made by the Blair Government some 20 years ago, which caused not just offence but real concern that the motivation of lawyers was being questioned in quite a concerted way.
Although it is something that we as lawyers have to live with, I will not accept threats of physical or verbal abuse on lawyers just because they are doing their job, because that sort of thing, if unchecked, can lead to more serious consequences. A society that does not value those who uphold the rule of law is not a society that we should be evolving into. That is why in recent months I have on a number of occasions in public forums made just that point. I will continue to do so, because I believe that it is my role to uphold and defend the rule of law, which of course has to involve an independent legal profession as a key part of it.
Lord Singh of Wimbledon: Would you agree that criticism from Government and from other senior people in society undermines not only the lawyers concerned but also the regulatory bodies that should be dealing with this?
Robert Buckland: You are right to draw me back to the regulatory body point. The regulatory bodies absolutely are there to deal with breaches of the code and matters that bring the profession into disrepute. Sadly, there are examples of that, which are dealt with, as you say, by the appropriate disciplinary bodies. There will be times when perhaps frustrations can develop and strong language can sometimes be deployed. We will never have a situation where we can prevent that.
It is certainly my job and the job of all of us who care about these things to make sure that the tone of the debate is as calm and as reasoned as possible and that, although none of us, lawyers included, are above criticism, it is done in a way that is entirely consistent with those democratic norms and with respect for the principles of the independence of our legal profession, our judiciary and indeed the rule of law itself.
Q19 Chair: You have said that you want the tone to be as reasonable as possible, and we would all agree with that. Do you agree that it is not the tone that is being taken by the Prime Minister and members of the Cabinet when they talk in derogatory and inflammatory terms about “activist lawyers”, “lefty lawyers” and “lawfare”? Do you think that is a reasonable tone in which the Government should speak about the independent legal profession taking actions on behalf of their clients within the regulated environment that lawyers are in?
Robert Buckland: There have been times, sadly, where practitioners have indeed fallen foul of the regulator because of the practices they have adopted; I am thinking of lawfare. Disciplinary proceedings have followed, with quite serious cases where, frankly, the reputation of the legal profession was undermined by the activities of some so-called activist lawyers. These are not phrases that trip lightly off my tongue, particularly. Having been a professional for many years before I entered Parliament, I knew what my duties were and I stuck to them. I believe that the majority of professionals do that.
Social media has amplified this. Where I see members of the legal fraternity using social media as a platform to vaunt their political views in a way that is designed perhaps to get them prominence or publicity and to perhaps generate some work, I worry about that. That is giving entirely the wrong impression about what the profession should be about. The profession is at its very best when it does not wear its political colours on its sleeve and just quietly gets on with its work, consistent with its duty to the court and indeed to its client.
The best that I can do as Lord Chancellor is to constantly remind people of that essential truth about the legal profession and about the very best that it embodies. To politicians, you saw it yourself 20 years ago. It is not pleasant and it is not particularly wise for senior politicians to start labelling legal aid lawyers as fat cats who are only interested in making lots of money rather than actually doing a proper job for people who otherwise would be unrepresented. That was, frankly, unacceptable.
Therefore, although some of the tone has been, shall we say, a little warm of late, this is not particularly new. Therefore, we should put it in its context. As long as there are strong voices like mine, and indeed the Lord Chief Justice, reminding everybody about the essential values of the profession, we are in a strong place when it comes to the rule of law.
Chair: Do you think that the Prime Minister and Cabinet Ministers talking about “activist lawyers”, “lefty lawyers” and “lawfare”, and whipping up opinion against them, has contributed to the threats, which have come through social media particularly, of physical and verbal violence against lawyers? Do you think that they have had a part to play in this?
Robert Buckland: Sadly, we have seen the development of this type of threat arise with the rise of social media. The sort of inflammatory language and worse, crossing the line into criminality, has not just developed in the last 12 months. It has not just been prominent politicians who have been the subject of this type of attack. It has indeed been people carrying out professional duties, not just lawyers by the way but the other professionals who have come into the public eye. We cannot attribute a rise in threats and attacks to a couple of remarks or speeches that have been made in the past few months—far from it.
We all need to collectively draw breath and remind ourselves that it is our collective responsibility to get the tone right here. Indeed, if there are links between what public figures say and direct attacks, that should disturb us all very much indeed.
Q20 Chair: I will hope that the Prime Minister, the Secretary of State for Defence and the Minister for Defence have been listening to what you have said and understand the purport of that. Can I ask you about the UK Supreme Court? There have been reports about your plans to reform it. Why do you think it needs to be reformed?
Robert Buckland: I am not going to comment on a report in a Sunday newspaper. It would not be appropriate for me to do that. As part of our manifesto commitment, we committed to looking carefully at all aspects of our constitution. That would include the results of the 2005 Constitutional Reform Act. That was a wide-ranging piece of legislation that covered not just the creation of what is now the UK Supreme Court but aspects of my role as Lord Chancellor and the Lord Chief Justice’s role as well.
Again, it is in the spirit of what we are doing with regard to administrative law and the Human Rights Act. It is entirely appropriate for us, as a result of that manifesto pledge, to take stock and to examine the current framework to see whether it is still working in a way that is appropriate some 10 or 15 years after the passage of that Bill. It is now 12 years since the formal inauguration of the Supreme Court.
Can I make it absolutely clear that I am a full-throated supporter of an institution that brings together the three jurisdictions of the United Kingdom as the court of final appeal? The integrity and quality of its members are world class and beyond any legitimate criticism or objection. We are extremely well served by that body of distinguished men and women, who are selected by an absolutely independent process in a way that we should all be rightly proud of. It is not about the quality or otherwise of that court.
What it is more about and what the debate needs to develop on to is the status of that court within the wider constitution. We need to make sure that it is indeed incorporating and making use of the expertise that we have in the various appellate courts in the three jurisdictions that it serves.
It is right to say that the court has, on a number of occasions, brought in senior appellate judges to sit in on and take a direct part in some of its deliberations. That is a very good thing and something to be encouraged, frankly. I am not about wholesale dismantling and revolution here. I am trying to make sure that we have that all-important balance right and that relations between our senior appellate courts and the rest of the constitution are in the healthiest possible place.
I know there has been talk, in riposte to the comments that were made in the Sunday newspapers, that this is some sort of revenge. Can I please disabuse anybody of that notion? That is just wrong. To debase any debate or consideration of changes of policy on revenge would be, frankly, infantile and unworthy of anybody who either holds my office or has the responsibility of making decisions in government. That is not what we are about. It is all about that sensible evolution of our constitution, maintaining that balance and ensuring, as I said before in a previous answer, that judges are protected from the nightmare scenario of a US-style appointments system that would do nobody any good whatsoever.
Chair: Who do they need to be protected against? Surely it is only the Government who could be bringing forward legislation to abolish the independence of the judiciary that we have, right from the Supreme Court down, at the moment. You are saying, “We have to protect them”, but the Government would be the only people in a position to do that. Why would they need to be protected against the Government? It sounds a bit like a veiled threat: “Watch out. Don’t do any of the things we do not agree with, or we might find ourselves in a situation where we are clipping your wings or even making you more politically accountable: ie making you politically accountable like they are in the States”. It looks like you are trying to protect the judges against what you have up your sleeves.
Robert Buckland: Nothing could be further from the truth.
Chair: Where does the threat come from which you are trying to protect the judges against, if not from you?
Robert Buckland: There is no threat from the Government. I am talking about making sure that, as an important part of the constitution, the Supreme Court, its independence and the independence of the judiciary are absolutely guaranteed and enhanced. The question that is entirely legitimate to ask is about us making sure that there is a respect for comity at all times. By comity, I mean the mutual respect between the different arms of the constitution.
Chair: Do you think the Supreme Court is not respecting that and is engaging in judicial activism, or do you think it is respecting it and is not engaging in judicial activism?
Robert Buckland: This is not about any particular case or any perceived trend in the court. I have said in the past that the Supreme Court judges always endeavour to answer the question put before them. The cases come to them on the basis of public importance, but they do not choose the cases that come before them. They have to address the questions they are asked. In my experience, they always endeavour to seek to answer that question and resist any of the roaming across the constitutional savannah that perhaps we see in other jurisdictions. I have utter faith in the ability of our independent judiciary to adhere to that.
What I am saying, as I should do, is that, looking ahead, looking at the long term, I want to ensure that we do not, either intentionally or unintentionally, proceed down a path that leads to a political process that allows parliamentarians in effect to cross-question and ultimately select members of that court or indeed any other court within our jurisdictions. I make no bones about it: it is my job to protect the judiciary from that scenario. That does not mean that I have anything up my sleeve. I am being entirely transparent and straightforward about this, frankly. That is what I regard my role as being. It is in that spirit that we would look at and potentially embark upon consideration of the issues that you have raised.
Chair: Thank you very much, Lord Chancellor, for answering on such a wide range of issues that have arisen out of our reports and for your attention to those reports in advance of this session. Please rest assured that we will be giving more power to your elbow on all the issues that you are taking forward on human rights in government. It is not an easy task to be trying to restrain and ensure that other Ministers keep on the straight and narrow. That is your job and we will be supporting you in that.
Robert Buckland: Thank you, Chair, and thank you to the Committee.
Oral evidence: Ministerial Scrutiny: Human Rights